IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDWARD LEMPA :

: CIVIL ACTION 

v. :

: NO. 05-cv-0985

ROHM AND HAAS COMPANY :

SURRICK, J. MARCH 20, 2007

MEMORANDUM & ORDER

Presently before the Court are Defendant Rohm and Haas Company’s Motion To Dismiss

In Part (Doc. No. 5) and Plaintiff Edward Lempa’s Motion For Leave To File An Amended

Complaint (Doc. No. 10). For the following reasons, the Motions will be Granted.

I. BACKGROUND

Plaintiff Edward Lempa brought this action against Defendant Rohm and Haas Company

(“Rohm and Haas”), alleging age discrimination and breach of contract. (Doc. No. 2.) Plaintiff

was employed by Defendant for a period of thirty-six years. Plaintiff alleges that he had

received certain assurances from his supervisor and others at Rohm and Haas that, upon his

retirement, he would receive severance pay under Defendant’s Severance Benefits Program

(SBP). (Id. ¶¶ 8, 10.) Plaintiff contends that, given his length of service, he was entitled to one

year’s pay under the SBP. (Id. ¶ 8.) However, these benefits would be denied if Plaintiff were

to be terminated for cause based on poor performance reviews. (Id. ¶ 12.)

In the fall of 2002, Plaintiff received his first negative review, which he claims was

undeserved. (Id. ¶ 13.) As a result, he was placed on probation and “subjected to performance

conditions that were virtually impossible to meet.” (Id.) Defendant also simultaneously posted

Plaintiff’s job as a vacancy. (Id.) Plaintiff avers that Defendant proceeded to “deliberately

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2

fabricate[] a record of poor performance in order to disqualify [Plaintiff] from eligibility for SBP

benefits.” (Id. ¶ 15.) Defendant constructively discharged Plaintiff, forcing him to retire in

March 2003 without any SBP severance benefits. (Id. ¶ 21.) On May 7, 2003, Plaintiff filed a

complaint of age discrimination with the Equal Employment Opportunity Commission and with

the Pennsylvania Human Relations Commission. (Id. ¶ 22.) 

Plaintiff commenced the instant action by filing a Praecipe for Writ of Summons in the

Court of Common Pleas of Philadelphia County on February 2, 2005. (Doc. No. 1 ¶ 1.) The

Writ was served on Defendants on February 8, 2005. (Id.) Defendant removed the case to this

Court on March 2, 2005, after which Plaintiff filed the instant Complaint, raising four claims: 

(1) age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29

U.S.C. § 621 et seq.; (2) age discrimination in violation of the Pennsylvania Human Relations

Act (PHRA), 43 Pa. Cons. Stat. § 951 et seq.; (3) breach of contract in denying Plaintiff’s

benefits under the SBP; and (4) breach of the covenant of good faith and fair dealing inherent in

the contract between the parties. (Doc. Nos. 1, 2.)

II. DISCUSSION

A. Motion to Dismiss Counts III and IV of Plaintiff’s Complaint

In its Motion to Dismiss in Part, Defendant seeks dismissal of Counts III and IV of

Plaintiff’s Complaint. Defendant argues that these state law contract claims are preempted by §

514(a) of the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001

et seq. Section 514(a) provides that the federal statutory scheme established by ERISA

“supersede[s] any and all state laws insofar as they may now or hereafter relate to any employee

benefit plan.” 29 U.S.C. § 1144(a). Courts in this District have routinely determined that claims

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 2 of 11
3

similar to Plaintiff’s are preempted by ERISA and should be dismissed. See La Fata v.

Raytheon, 223 F. Supp. 2d 668, 676 (E.D. Pa. 2002) (ERISA preempts “state law claims for

breach of contract, breach of fiduciary duty, unjust enrichment and breach of covenant of good

faith and fair dealing” related to denial of severance benefit).

As a threshold matter, Defendant attached to its Motion the Affidavit of Joseph

Cavallaro, Global Director of Total Rewards for Rohm and Haas, as well as sections of the

Rohm and Haas Retirement Plan, and Retirement Plan Summary Plan Description, which

address the terms of the SBP. (Cavallaro Aff., Doc. No. 5 at Exs. 1, 2.) Plaintiff contested the

authenticity of these documents, arguing that the phrase “Severance Benefits Program” is not

uniformly used in the attached literature, that the documents are not complete, and that it is

unclear whether these documents were in effect at the times relevant to Plaintiff’s claims. (Doc.

No. 8 at 5-6.) We entered an Order directing counsel to obtain a copy of the authentic

documents for the relevant time period and submit them to the Court for consideration. (Doc.

No. 12.) On January 5, 2007, the parties submitted a Stipulation pursuant to our Order as to the

authenticity of the following documents:

• Rohm and Haas Company Retirement Plan (As Amended and Restated 

Effective December 31, 2001), which was in effect in 2003;

• Rohm and Haas Company Retirement Plan Summary Plan Description

Based on the Plan as amended through May 2002, which was in effect in

2003;

• Rohm and Haas Pension Plan (As Amended and Restated Effective

December 31, 1998).

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(Doc No. 15 at Exs. 1-3). We will incorporate these documents into our analysis and treat

Defendant’s Motion as one for summary judgment. 

Summary judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(c). An issue is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A factual dispute is “material” if it might affect the outcome of the case under

governing law. Id.

We conclude that Counts III and IV of Plaintiff’s Complaint are preempted by ERISA. 

ERISA governs two types of employee benefit plans: (1) employee pension benefit plans and (2)

employee welfare benefit plans. Middletown v. Phila. Elec. Co., 850 F. Supp. 348, 350 (E.D. Pa.

1994). Severance plans, like the SBP offered by Defendant, may under certain circumstances be

deemed welfare benefit plans governed by ERISA. Id. (citing Mass. v. Morash, 490 U.S. 107,

116 (1989)). ERISA’s applicability ensures that employers may establish a “uniform

administrative scheme” and avoid dealing with conflicting or inconsistent state and local

regulation. Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 9 (1987).

Whether Defendant’s SBP constitutes a plan under ERISA is a question of fact, the

crucial determinant of which is whether “the employer has expressed an intention to provide

benefits on a regular and long-term basis.” Wheaton v. Diversified Energy, LLC, Civ. A. No. 03-

105, 2005 U.S. Dist. LEXIS 11280, at *3 (E.D. Pa. June 2, 2005) (internal quotation omitted). 

Such “a plan . . . is established if from the surrounding circumstances a reasonable person can

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 4 of 11
 The plan documents refer to both the “‘SBP’ or Severance Benefit Program” and the 1

“Involuntary Early Retirement Pension.” (See Doc. No. 15 at Exs. 1, 2.)

5

ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures

for receiving benefits.” Id. (internal quotation omitted). In particular, a severance benefit plan

does not “implicate ERISA unless [it] requires the establishment and maintenance of a separate

and ongoing administrative scheme.” Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1538 (3d Cir.

1992). For example:

The requirement of a one-time, lump-sum payment triggered by a single event

requires no administrative scheme whatsoever . . . . The employer assumes no

responsibility to pay benefits on a regular basis and thus faces no periodic

demands on its assets . . . . Rather the employer’s obligation is predicated on the

occurrence of a single event that may never materialize. . . . To do little more

than write a check hardly constitutes the operation of a benefit plan.

Fort Halifax, 482 U.S. at 12.

Defendant’s SBP awards eligible employees a benefit equal to a percentage of their base 1

pay. This percentage is calculated based on each participant’s age and years of service. 

Eligibility depends upon the employee having been terminated under certain conditions,

including job elimination, reduction in workforce, or restructuring. A participant will become

ineligible if he is “terminated for failure to satisfactorily perform the essential duties of [his]

employment, a violation of law[,] . . . or other behavior that [Defendant] determines constitutes a

material breach.” (Doc. No. 15 at Ex. 1 § 11.3.1.) The employee is also required to execute a

binding release. Moreover, participants may elect to receive the benefits either as a “Qualified

Joint and Survivor Annuity,” a “single life annuity,” “a cash lump sum distribution of the

Actuarial Equivalent value,” or as a series of “level monthly payments equal to the value of the

cash lump sum distribution.” (Id. § 11.4.1–.4.34.) In all four instances, Defendant has

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 5 of 11
 We note that in an earlier case before the Honorable Herbert J. Hutton, another plaintiff 2

challenged a denial of benefits under an earlier version of Rohm and Haas’s SBP. See

Abramowicz v. Rohm & Haas Co., Civ. A. No. 00-4645, 2001 U.S. Dist. LEXIS 17693, at *8

6

established a scheme for calculating the amount and schedule of payments. The plan documents

call for the creation of an Administrative Committee and an Investment Committee to oversee

the plan’s administration and financial performance. Finally, it installs a procedure through

which claims may be submitted, reviewed, denied, and appealed.

We agree with Defendant that the SBP more closely resembles the benefits plans in Pane

v. RCA Corp., 868 F.2d 631 (3rd Cir. 1989), and La Fata, 223 F. Supp. 2d at 667, to which

ERISA was found to apply, than those identified by Plaintiff in response. The SBP does not

merely require a lump-sum payment predicated on a single event, like the plant closing

severance in Fort Halifax Packing Co., 482 U.S. at 3, or the “buyout plan” offered to the most

senior employees to voluntarily retire in Angst, 969 F.2d at 1532. Rather, it utilizes a

mathematical scheme to calculate the value of benefits and the payment schedule applicable at

the time the beneficiary’s employment is terminated. Moreover, the administrators of the SBP

must determine whether an employee was terminated other than for cause or if a material breach

occurred. The presence of such discretion militates towards the applicability of ERISA. See

Darlin v. Consol. Rail Corp., 93 F. Supp. 2d 599, 601 (E.D. Pa. 2000) (ERISA applies to plan

where “eligibility is restricted to employees who ‘are terminated (or constructively terminated)

without cause’—a standard involving the use of subjective discretion by the plan

administrator.”). In instituting the SBP, Defendant “indicate[d] an intent to establish a regular

and ongoing severance plan,” La Fata, 223 F. Supp. 2d at 676, and, in doing so, created a new

administrative scheme, the hallmark of an ERISA benefits plan, see Pane, 868 F.2d at 635. 2

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 6 of 11
(E.D. Pa. Oct. 30, 2001). The terms of the SBP then in effect, as quoted in that opinion,

resemble the terms of the SBP at issue here. Compare id. at *13-20, with (Doc. No. 15 at Exs. 1,

2. In that case, ERISA was held to apply to the SBP and to govern plaintiff’s claims. Id. at *10.

7

Accordingly, Plaintiff’s state law breach of contract claims seeking recovery of severance

benefits are preempted by ERISA and will be dismissed.

B. Motion to Amend Plaintiff’s Complaint

Since Plaintiff’s contract claims are preempted, Plaintiff seeks to amend his Complaint to

add a fifth Count alleging that Defendants violated § 510 of ERISA by constructively

discharging him and thereby interfering with his right to receive severance benefits. (Id. at Ex.

A ¶¶ 34-36.) 

Defendant opposes Plaintiff’s Motion on grounds of futility, arguing that the proposed

claim under § 510 is futile in that it is barred by the statute of limitations. (Doc. No. 11.) 

Congress has provided no specific statute of limitations for actions brought under § 510 of

ERISA. Instead, courts must determine the most analogous state statute and apply the attendant

limitations period to the ERISA claim. See Henglein v. Colt Indus., 260 F.3d 201, 208 (3d Cir.

2001). The Third Circuit has recently approved the use of a two-year statute of limitations for §

510 claims. Anderson v. Consol. Rail Corp., 297 F.3d 242, 246 (3d Cir. 2002). In Anderson, the

plaintiff’s § 510 claim was likened to a common law claim for wrongful termination, which

carries a two-year statute of limitations under Pennsylvania law. Factually, the plaintiff in

Anderson alleged that by being involuntarily terminated by his employer, he was deprived of the

right to receive benefits payable had he voluntarily retired. Id. at 246. Here, Plaintiff claims that

his “constructive discharge” had a similar effect. Accordingly, application of the two-year

statute of limitations is appropriate.

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 7 of 11
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The District Court in Anderson v. Consolidated Rail Corp., No. 98-6043, 1999 U.S. Dist.

LEXIS 4787 (E.D. Pa. Apr. 7, 1999), instructs that a § 510 claim, like Plaintiff’s, accrues as of

the date of the wrongful discharge or termination. Id. at *16-17 (citing Zipf v. Am. Tel. & Tel.

Co., 799 F.2d 889, 893 (3d Cir. 1986) (§ 510 carries no requirement that internal remedial

procedures be exhausted)). As such, Plaintiff’s claim accrued when he was forced to retire in

March 2003. (Doc. No. 2 ¶ 18.) Almost two years later, on February 2, 2005, Plaintiff filed the

Praecipe for Writ of Summons in the Court of Common Pleas. The Summons was served on

Defendant on February 8, 2005. (Doc. No. 1 ¶ 1.) Plaintiff did not file his initial Complaint

until May 25, 2005, after the case was removed and more than two years after his constructive

discharge.

Federal Rule of Civil Procedure 15(c) provides that an amendment to a pleading may

relate back to the date of an earlier pleading under certain circumstances. Pursuant to Rule

15(c)(2), an amendment “relates back to the date of the original pleading when . . . the claim or

defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading.” Fed. R. Civ. P. 15(c)(2). All of

Plaintiff’s claims, including the one asserted in Count V, arise from his constructive discharge

from Defendant’s employ. Nevertheless, Defendant contends that Rule 15(c) does not salvage

Plaintiff’s § 510 claim, because the amendment cannot relate back to the Praecipe for Writ of

Summons since a praecipe does not constitute a “pleading” as envisioned in the rule, and

Plaintiff’s Complaint was filed after the limitations period had expired. (Doc. No. 11 at 1 n.1.) 

While Defendant is correct that neither Pennsylvania nor federal procedural law

recognize a writ of summons as a pleading, as that term is defined, we conclude that this

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 8 of 11
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procedural anomaly does not bar Plaintiff’s current request. Compare Pa. R. Civ. P. 1017 with

Fed. R. Civ. P. 7. Federal law controls whether this amendment relates back to an earlier

pleading. See Britt v. Arvanitis, 590 F.2d 57, 61 (3d Cir. 1978). Pennsylvania law controls the

pre-removal aspects of this case. Frazier v. City of Phila., 927 F. Supp. 881, 884 (E.D. Pa.

1996), rev’d on other grounds, 266 F.3d 186 (3d Cir. 2001). Under Pennsylvania law, the act of

filing the Praecipe served to commence Plaintiff’s action in state court and to effectively toll the

statute of limitations. See Pa. R. Civ. P. 1007; Galbraith v. Gahagen, 204 A.2d 251, 252 (Pa.

1964). Following removal to federal court, the praecipe filing date is controlling for purposes of

the statute of limitations. See Bennett v. Consol. Rail Corp., Civ. A. No. 88-3337, 1988 U.S.

Dist. LEXIS 10012, at *8-9 (E.D. Pa. Sept. 8, 1988) (filing of writ controls, even if it is later

determined that United States District Court had exclusive original jurisdiction over claim); see

also Mitchell v. Joseph’s Supermarkets, Inc., 712 F. Supp. 59, 63-64 (W.D. Pa. 1989). 

We are not persuaded by Defendant’s argument that relation back should be precluded

because the Writ of Summons did not provide Rohm and Haas with “fair notice of the general

fact situation and legal theory upon which the amending party proceeds.” (Doc. No. 11 at 2 n.1

(citing Bensel v. Allied Pilots Assoc., 387 F.3d 298, 310 (3d Cir. 2004)). The Praecipe for Writ

of Summons filed in the Philadelphia Court of Common Pleas on February 2, 2005, and the

Summons issued as a result, did not identify Plaintiff’s claims with specifity. However, the

Philadelphia Court of Common Pleas Civil Cover Sheet filed with the Praecipe identified the

type of claim as “Contract,” involving an amount in controversy in excess of $50,000. It also

identified the Age Discrimination In Employment Act and the Pennsylvania Human Relations

Act as statutory bases for a cause of action. Defendant knew that Plaintiff had been a thirty-six

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 9 of 11
10

year employee of Defendant, that he had taken retirement under circumstances that were not

voluntary, and that had he not been terminated under those circumstances, he would have been

entitled to severance pay under Defendant’s SBP. When Plaintiff filed his original Complaint

alleging Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing,

Defendant immediately filed a Motion to Dismiss asserting that Plaintiff’s contract claims were

preempted by ERISA. Defendant’s assertion that it did not have fair notice of the general fact

situation and legal theory upon which Plaintiff was proceeding when it received the initial filings

is questionable. Moreover, we note that the Pennsylvania Rules provided Defendant with an

immediate opportunity upon receipt of service of the Summons to obtain the details of Plaintiff’s

claim if Defendant did not already know them. See Pa. R. Civ. P. 1037 (“If an action is not

commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule

upon the plaintiff to file a complaint. If a complaint is not filed within twenty days after service

of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non

pros.”). 

We find no justification here for denying Plaintiff’s Motion. The statute of limitations

would not bar the § 510 claim had it been brought in Plaintiff’s initial Complaint. It should not

now prohibit its introduction by amendment and relation back. We will permit Plaintiff to

amend his Complaint pursuant to Rule 15 and permit the amended Complaint to relate back to

the original filing in state court. Plaintiff’s Motion for Leave to Amend will be granted.

An appropriate Order follows.

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDWARD LEMPA :

: CIVIL ACTION

v. :

: NO. 05-cv-0985

ROHM AND HAAS COMPANY :

ORDER

AND NOW, this 20th day of March, 2007, upon consideration of Defendant Rohm and

Haas Company’s Motion To Dismiss In Part (Doc. No. 5) and Plaintiff Edward Lempa’s Motion

For Leave To File An Amended Complaint (Doc. No. 10), it is ORDERED as follows:

1. Defendant’s Motion to Dismiss in Part is GRANTED, and Counts III and IV of

Plaintiff’s Complaint are DISMISSED.

2. Plaintiff’s Motion for Leave to Amend is GRANTED.

IT IS SO ORDERED.

 

BY THE COURT:

___________________________

R. Barclay Surrick, Judge

Case 2:05-cv-00985-CDJ Document 16 Filed 03/20/07 Page 11 of 11